*1 opinions of doctors who testified behalf of Wheeler uncon were Wheeler, troverted. other cases relied on Hook v. Industrial Com. Ill. 2d Kerz v. Industrial Com. and Lewandowski Com. Industrial are all
cases in unrebutted, which the claimants’ medical testimony leaving no inference be drawn the Commission.
The Commission is the of the judge of the credibility witnesses weight given to their is for testimony. It the Commission to decide conflicting medical opinions given in a case is to be accepted. Caterpillar Tractor v.Co. Com. Industrial Ill. 2d do
As we not find the decision of the Commission to be weight evidence, manifest we affirm of the the decision circuit court of County. Jefferson
Affirmed.
BARRY, P.J., McCULLOUGH, McNAMARA, and KASSER- MAN, JJ., concur. HARRIS,
DOROTHY Adm’r Special Royce Wayne Estate GOWER, Plaintiff-Appellant, INC., d/b/a et
al., Defendants-Appellees. Fifth District No. 5 — 86—0019 Opinion filed March *2 KARNS, P.J., dissenting. Austin, Marion, appellant. for
Paul Thomas Schoen, Dahlen, Feirich, F. Michael both of Ma- Richard A. Green and Carbondale, Gower, Green, Joann Gower. ger, appellees for Inc. and of the court: opinion delivered JUSTICE WELCH Harris, on and as admin- Dorothy her own behalf special husband, istrator of the Royce estate of her deceased Wayne judgment from a circuit court of Williamson appeals for granting on the We re- verse and remand. negli- upon is based Gower, Inc., and is brought against the Bar- corporation d/b/a Gower, Watson, and Eloise
bary Terry May Joann and as McAnelly employees of the defendant tavern. Plaintiff’s complaint alleges on December decedent was a cus- tomer at Coast Tavern. Decedent consumed became intoxicated and unconscious. intoxicated and uncon- While scious, Gower, Watson, decedent was removed from the tavern by McAnelly and into a car placed parking tavern’s lot. Plaintiff’s known knew or should have that defendants further as or and that to cause death likely that their conduct was conduct, froze to death. result of defendants’ Inc., filed a motion for Gower, and Joann Gower Defendants ground on the ment on for injuries owners taverns operators remedy against means of an intoxicated person, property, support par. Rev. Stat. consequence of intoxication. The trial court motion. defendants’ Act is not the Dramshop On contends that appeal, plaintiff upon her is based because only remedy available intox conduct decedent after he became toward rather upon icated and unconscious than that the Dram- decedent with It is well established supplying liquor. Act is the tavern owners and shop for of in toxication. Consequently, neg there no common law sale or ligent Wimmer v. relies Lessner v. Hurtt injured argument. *3 Hurtt Ramada Inn’s cocktail fight with defendant in defendant 195, 196, 125.) Ill.
lounge. (55 3d 371 N.E.2d App. it, through in alleged “Ramada was its intoxicated, knew he that Hurtt was threatened employees, knew harm, did Hurtt plaintiff not remove when physical *** of physi to aid when the threat endangered, and refused (55 cal harm imminent.” 3d 317 N.E.2d App. became Ill. for summary judgment The trial motion ) Ramada’s the availa Dramshop remedy on basis that the Act was 195, 196, 125, 126.) to 3d 371 N.E.2d re plaintiff. (55 App. ble Ill. plaintiff’s court’s this court stated that versing judgment, negligence does not reason the sale or “complaint charge prevent but rather is on Ramada’s failure to in liquor, grounded dangerous to a boisterous and customer jury plaintiff by 195, 197, (55 Ill. 3d 371 N.E.2d premises.” App. defendant’s of whether a obtains ) “regardless 126. The court reasoned *** operator at a of such a business shop, dram owner liquor by failing liable to consequently protect be may (55 from harm Ill. physical premises.” patrons 125, 126.) The court held that duty 3d App. his free from guests see that are of a tavern owner or to operator annoyance much as of land must act reasona bly avoiding in harm to from invitees of third persons. (55 Ill. App. 125, 126.) Thus, the Act is not the remedy.
Although plaintiffs complaint this case that dece dent purchased from intoxicating liquor plaintiff, unlike complaint in it does not diminish plaintiff’s cause of action. The allegation in this complaint regarding the sale of li intoxicating to quor decedent is significant only reference how decedent be came unconscious. It also established that decedent did not him place self in it but rather was defendants who peril, placed decedent
Furthermore, action, when a a cause of party brings tions of fact are for a necessary proper complaint. (Mlade Finley App. 1243-44.) The trial court must construe these in order to liberally jus achieve (112 tice between the litigants
1244) litigation and look to the resolution of on the merits and the of elevating avoidance of form over of substance questions questions (Zeh 1348). Wheeler case, the trial Plaintiff court elevated form over substance. all death. properly alleged pertinent facts which resulted decedent’s in the Although plaintiff alleged defendants supplied intoxicating causing sold and to the decedent unconscious, to become it is not act that resulted in de allegedly drunk, cedent’s or not decedent had been his drunk death. Whether enness not lessen the tavern owner’s his duty protect patrons did customers, his or the owner employees, other himself. on the fact that defendants’ properly predicated placing night of the unconscious decedent in his truck on a cold winter very the act to plaintiff’s led husband’s death. allegedly a minor he unlike case where suffered when be came in a after purchasing liquors. unconscious bank snow alcoholic (Gora Food 7-11 Stores case, not harmed allege in this did alco consuming
cause he became unconscious inside the tavern after Rather, holic that tavern owners harmed de liquors. plaintiff alleged *4 Thus, that the cedent decedent in this court finds by placing negli of action for common law proper did state a cause not their based acts decedent and intoxicating liquor. in the sale of reasons, of the circuit court of foregoing For the proceedings for further is reversed and remanded Williamson this opinion. consistent with
Reversed and remanded.
KASSERMAN, J., concurs. KARNS, JUSTICE dissenting:
PRESIDING I disagree that majority’s plaintiff’s complaint conclusion states a action negligence. cause of for common law Plaintiff’s com of plaint alleges “plaintiff’s patron that customer and establishment,” decedent consumed “plaintiff’s unconscious,” drinks that “while in and became intoxicated toxicated and by unconscious” decedent was removed from tavern went employees. so pleading, yond alleging a of duty stemming breach defendants’ status as a of land. Lessner Hurtt the court examined empha sized that “plaintiff’s amended made no reference or tion regarding whether defendant Hurtt at Ramada purchased liquor or became intoxicated reason thereof.” In concluding Lessner basis, distinguishable I do not believe that form has been elevated over substance. See Zeh v. Wheeler 111 Ill. 2d
Examination pleadings leads to inescapable conclusion that plaintiff’s predicated action is the sale supply well established Rev. Stat.
par. 135) is the tavern owners and (Wimmer intoxication of Koenigseder (1985), 435, 484 1088), and it was at undisputed argument oral had pursuant indeed recovered settlement to the Dramshop Act. court has taken an supreme expansive view of the Dramshop Act and has failed to recognize for the sale Act is supply liquor, concluding remedy where the sale or leads to (See Wim injury. mer v.
1092; v. Brown Cunningham
160.) correctly ment on the Cardinal Glass Co. Board Education